Decision #36/19 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her claim is not acceptable. A hearing was held on January 31, 2019 to consider the worker's appeal.
Whether or not the claim is acceptable.
That the claim is not acceptable.
The worker filed a claim with the WCB for an injury to her left wrist with an incident date of April 6, 2017. The worker described the incident as "Suspected CTS (carpal tunnel syndrome)", which she related to her job duties as a visiting health nurse. The worker reported that she had a couple of bariatric clients and noted that it hurt the most when providing care to them and trying to hold their limbs to do compression therapy. The worker stated that she would see up to 15 people in a day and did various tasks with them, including a lot of wound care. The worker stated that she had experienced symptoms on and off for months. She had pain and soreness in her left hand and arm and would get more tired than usual. She noticed that the pain was not going away when she worked longer stretches, and was still there even if she took longer breaks. She then started to get numbness and tingling in the fingers on her left hand.
The worker attended her family physician on April 6, 2017. She reported that she had a gradual onset of pain in her left wrist and numbness in her left thumb and index finger. The physician noted the worker's subjective complaints of slowly progressive pain in her wrist despite wearing a brace at night, and that the worker had a ganglion dorsum on her left hand. The physician did not provide a diagnosis.
In a discussion with Compensation Services on April 20, 2017, the worker advised that she initially complained of her wrist discomfort to her employer in January 2017 and reported her difficulties as a workplace injury on April 6, 2017.
At her initial appointment with a physiotherapist on April 28, 2017, the worker described the injury to her left wrist and thumb as "Repetitive strain injury from repetitive tasks at work with dominant hand." The physiotherapist diagnosed the worker with "Left Carpal Tunnel Syndrome, De quervain's tenosynovitis" and recommended modified duties of "No repetitive gripping, twisting, lifting. No lifting over 15 lbs. Avoid bariatric caseload."
On May 2, 2017, Compensation Services advised the worker that they were unable to accept responsibility for her claim. Compensation Services found that although some force was required in the worker's job duties, they were not considered to be highly repetitive and did not require high repetition involving full flexion and extension, which were generally considered factors for the development of occupationally-related CTS.
On September 18, 2017, the worker's union representative requested that Compensation Services review their decision that the claim was not acceptable. The worker's representative provided a written submission, together with further information on the worker's job duties, including a job description, and a copy of a Nerve Conduction Study ("NCS") done May 29, 2017.
On September 25, 2017, Compensation Services advised the worker that following their review of the additional information submitted, there would be no change to their decision.
On March 19, 2018, the worker's union representative requested that Review Office reconsider Compensation Services' decision. The representative submitted that the worker's symptoms and diagnosis of CTS were directly related to a change in duties in November 2016, six months prior to the date of injury, to include two bariatric clients who required a very specific form of wound care, in addition to her regular duties. The representative provided a Physical Demands Analysis of the worker's position, noting that the position was classified as requiring a light/medium to medium level of strength and that risk factors included the unpredictability of clients' actions and reactions and the "potential for repetitive upper extremity work during client care (eg. Wound care)."
On May 10, 2018, Review Office determined that the worker's claim was not acceptable. Review Office noted that CTS had been associated with jobs requiring heavy, repetitious work, including motions of awkward hand and wrist positioning and/or pinch grip and heavy vibration. Review Office noted that the worker's job duties were generally not considered heavy or repetitive. The tasks required of the worker in a working day could be repetitious and heavy for short periods of time, but the majority of her tasks did not require awkward hand/wrist positioning against force and no heavy vibration was involved.
Review Office determined that the risk factors for the development of occupationally-related CTS were not present in the worker's job and they were unable to find that the worker's left-sided CTS arose out of and in the course of her employment.
On June 20, 2018, the worker's representative appealed the Review Office decision to the Appeal Commission and an oral hearing was arranged.
The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and policies of the WCB's Board of Directors.
Subsection 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid.
"Accident" is defined in subsection 1(1) of the Act as follows:
"accident" means a chance event occasioned by a physical or natural cause; and includes
(a) a wilful and intentional act that is not the act of the worker,
(i) event arising out of, and in the course of, employment, or
(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and
(c) an occupational disease,
and as a result of which a worker is injured.
The worker was represented by a union representative, who provided a written submission in advance of the hearing and made an oral presentation to the panel. The worker's position was that she sustained an injury to her dominant left wrist, diagnosed as mild CTS, which arose out of and in the course of her employment as a home care nurse, and her claim should be accepted.
The worker's union representative noted that the WCB had indicated that the occupational risk factors for CTS include forceful and repetitive hand motions, awkward positions, mechanical stress at the base of the palm and vibration, and that it was generally conceded that the greatest frequency of occupationally-related CTS is found where job duties involve high force and high repetition. In reviewing the worker's claim, the WCB had stated that they were unable to identify a workplace hazard.
The representative referred to documents from the employer's website relating to safe work procedures in wound and skin care and potential hazards in patient handling which she had submitted in advance of the hearing. The representative noted that as contrasted with an institutional setting, the working conditions in the home care setting were often cramped and less than ideal and the hazards or risk for injury could be higher. The representative noted that documentation with respect to safe patient handling indicated that there were special considerations for wound care, as workers "are often lifting and/or holding heavy limbs and/or adopting sustained awkward postures" during wound care, and that "some types of compression therapy can also require excessive force to apply (eg. Compression stockings) or may be repetitive in nature (eg. Wrapping [brand name dressing])."
The worker responded to questions from her union representative regarding her employment, her injury and the management of her injury. The worker described and demonstrated what was involved in applying the compression dressing to a client's leg.
The worker's representative submitted that the worker's workload changed in November 2016, when she was assigned two bariatric clients, both of whom required compression treatment. It was noted that whereas one box of supplies would be needed for compression treatment for the average-sized person, three boxes of supplies would be needed to wrap the leg of one of those clients, who was much heavier. This meant that it would take much longer to properly wrap the client's leg. The second bariatric client required compression treatment on both legs, which meant that this compression treatment also took much longer.
The representative noted that the process of wrapping the leg caused a great deal of gripping and force with the worker's dominant left hand, and was awkward, given the circumference of the leg. It was submitted that the process was repetitive and required sustained awkward positioning of the worker's wrist and hand as well as forceful gripping.
The representative noted that file documents show that the worker mentioned she was having difficulties in January 2017, sought medical attention in April 2017 as her symptoms progressed, and was diagnosed with mild CTS in May 2017. The representative submitted that the timing of this diagnosis, following the change in the worker's duties, suggested that this was a compensable injury.
In conclusion, it was submitted that the work which the worker was required to do, providing safe client care, caused her to be injured, and her claim is acceptable.
The employer was represented by an advocate and by the employer's WCB Case Manager. The advocate provided a written submission in advance of the hearing and made an oral submission to the panel. The employer's position was that they agreed with the decision that the worker's claim was not acceptable.
The employer's representative noted that file information showed the slow onset of CTS which the worker attributed to applying compression dressings to two clients. The representative noted, however, that there was no change in the worker's duties or workload to account for the development of CTS. While the worker had moved to a full-time position, she had picked up extra shifts to full-time hours before that.
The employer's representative submitted that the worker's work duties were varied and did not have the generally accepted possible occupational risk factors for the development of CTS, being combined repetition and force with the wrist in a sustained awkward position.
It was submitted that while there was no question the worker's workday would be busy and the work could be demanding, it did not qualify as repetitive. The worker's description of her job showed that she performed a variety of tasks. Aside from the compression dressings, the worker's other client care duties took up about 75% of her workday. While some of those tasks required repetitive or fine manipulation and some forceful wrist or hand movement, this was short-lived and did not involve the majority of the day or the client visit.
The employer's representative noted that information they had provided in advance of the hearing indicated that the worker saw the two heavier clients for a total of 32 and 38 visits, respectively, between November 2016 and April 2017, and that she saw both of them on the same day on 12 occasions only during that period of time. The representative also noted that a video link which they had provided and the worker's demonstration showed that both hands are used to apply the compression dressing and the wrists are in a neutral position. It was submitted that while there is some degree of force, the work is not labour intensive and is not repetitive.
The employer's representative submitted that a number of factors can contribute to the development of CTS and that in many circumstances it is idiopathic. She submitted that medical literature provided in advance of the hearing showed that the role of repetitive hand/wrist movement and workplace factors in the development of CTS is not proven and remains controversial.
In conclusion, it was submitted that the decision not to accept the claim was correct and the appeal should be dismissed.
The issue before the panel is claim acceptability. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered a personal injury by accident arising out of and in the course of her employment. In order to do so, the panel must find that the worker's CTS is causally related to her work duties. Based on the evidence before us, the panel is unable to make that finding.
The panel notes that the evidence shows the worker developed a number of symptoms at the same time, in November 2016, which resulted in diagnoses of a ganglion, mild CTS and tendonitis. The worker's union representative acknowledged at the hearing that the appeal related to the worker's diagnosis of mild CTS only.
The worker attributed the onset of her CTS to a change in her work duties in November 2016, to include compression therapy for two bariatric clients. The panel is not satisfied, based on the evidence, that there was a significant change in the worker's duties or in the amount of time she spent performing compression therapy for clients at that time.
The worker stated at the hearing that the biggest change was moving to a new area, which occurred in September 2016, and being required to perform compression therapy for two bariatric clients. The evidence shows, however, that the worker had a history of doing compression therapy, both before and after moving to the new area in September 2016. The worker said that when she started working in the new area in September 2016, she shared working with the bariatric clients with a co-worker, but when the co-worker had to go off work, the worker took on those clients "primarily for myself." The worker acknowledged that the number of clients she saw in a day did not change. The panel recognizes that the frequency of seeing the two bariatric clients may have changed at that point, but does not accept that there was a significant increase in the worker's duties.
The worker noted that when she was questioned initially as to what she had noticed might have caused her injury, the specific needs or treatment for the two bariatric clients were "the first two things that came to my mind because they were out of the normal." In response to a question at the hearing as to why she attributed her problems with her left wrist to her work with the two bariatric clients, the worker stated "that's when I noticed the most discomfort, was when I was providing the treatment and after."
The panel is unable to find that the worker's job duties, as described and demonstrated at the hearing, were causally related to her CTS. The evidence indicated that she did compression therapy for a maximum of four clients in a day, and the majority of her day was spent doing tasks other than compression therapy. She would visit 12 to 15 clients a day. She would have to travel from one client to the next, and would perform a variety of different tasks depending on the clients' needs.
With respect to the two bariatric clients, the worker said that they would see one of them for 45 minutes three times a week and the other for one hour to one hour and 15 minutes every second day. The required time for the second client would vary based on the amount of wound care and underneath treatment that was required. In the course of seeing these clients, the worker would be doing a number of related tasks including removing the previous dressing if necessary, cleaning the wound, assessing the area, measuring the wound, providing wound care based on the doctor's orders, and documenting. With respect to the application of the dressing or wrapping itself, the worker described a two-layer system of dressing, where the first layer being applied was a foam layer which did not have to be pulled tight. Only the second layer had to be stretched to provide compression.
The panel notes that the worker did not say that she ever had to stop providing treatment to the two bariatric or other clients or could not do her job properly because of her CTS. While the worker indicated that she started taking an extra sick day at some point in the middle of her scheduled seven day work shift, she indicated that this was due to fatigue overall; she did not specifically link it to her work doing compression therapy with the two bariatric clients or otherwise. It was only after she reported an injury and saw her doctor in April 2017, that she stopped treating one of the two clients, and after she received the results of the NCS at the end of May 2017, that she stopped seeing the second client and doing compression therapy.
The worker also noted in the course of the hearing that she used her wrist during the whole workday. While she referred to other tasks that she did, the panel is unable to find that those tasks would have been causative of CTS.
The panel notes that the worker said she eventually attended her doctor due to her fatigue. In a letter from her family physician to the WCB on April 26, 2017, the physician indicated that the worker did not relate her onset of symptoms to any specific injury or event, but did state that it became "more prominent" with heavier use at work.
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker's CTS is not causally related to her work duties. The panel therefore finds that the worker did not suffer a personal injury by accident arising out of and in the course of her employment. The worker's claim is not acceptable.
The worker's appeal is dismissed.
M. L. Harrison, Presiding Officer
C. Devlin, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 1st day of April, 2019